Indiana religious freedom legislation sparks firestorm

Someone ask the flamethrowers if they’ve read the law. It’s nothing new.

So much has erupted in big media and social media since Indiana Governor Mike Pence signed the Religious Freedom Restoration Act into law the other day, sanity is another thing we need to restore.

On Thursday, Indiana governor Mike Pence signed the Religious Freedom Restoration Act (RFRA) into law, and some celebrities, politicians, and journalists–including Miley Cyrus, Ashton Kutcher, and Hillary Clinton, just to name a few–are absolutely outraged. They say the law is a license to discriminate against gay people

which is simply not true. However, they’re making that perception a reality in people’s minds by repeating that exact mantra often and everywhere they can.

So calmer, wiser voices are speaking up to clarify just what this is all about. There are primers on RFRA all over the place, for those interested in knowing the truth behind the blowup. Here’s the Weekly Standard.

Is the Religious Freedom Restoration Act really a license to discriminate against gay people?

No. Stanford law professor Michael McConnell, a former appellate court judge, tells THE WEEKLY STANDARD in an email: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

It’s actually the opposite. It’s a protection of individuals, business owners, others, from being discriminated against for conducting their business according to their beliefs. Which applies in any number of possible scenarios, some offensive to one group or another, but necessary as a uniform framework law.

So what is the Religious Freedom Restoration Act, and what does it say?

(this is important, pay attention:)

The first RFRA was a 1993 federal law that was signed into law by Democratic president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer (D-NY), and sailed through the Senate on a 97-3 vote.

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a person’s free exercise of religion to be “substantially burdened” by a law only if the law furthers a “compelling governmental interest” in the “least restrictive means of furthering that compelling governmental interest.”  (emphasis added)

So the law doesn’t say that a person making a religious claim will always win. In the years since RFRA has been on the books, sometimes the courts have ruled in favor of religious exemptions, but many other times they haven’t.

However, the Weekly Standard notes the dramatic overreaction to the perception of the law since it passed late last week.

Meanwhile, activists are calling for a boycott. The CEO of SalesForce, a company that does business in China, is pulling out of Indiana. The NCAA has expressed concern about holding events there in the future. And the city of San Francisco is banning taxpayer-funded travel to the state.

Mollie Hemingway takes a closer look at that SalesForce boycott, among others, in this piece at the Federalist.

SalesForce is a $4 billion cloud computing company based in San Francisco. And its CEO Marc Benioff opposes religious liberty protections. He’s so extreme about it that when Indiana passed a bill that protects religious liberty, he announced he was pulling business out of the state….

Benioff argues that protecting religious liberty makes travel to Indiana unsafe for customers or employees. This would be a foolish slander about any state that protects religious liberty. But have you been to Indiana? They’re almost too nice. This is a shockingly stupid claim for someone to make about liberty protections. Besides, this bill protects people from improper government restrictions on religious liberty, contrary to most media coverage of the bill.

Anyway, it’s worth looking at who Benioff happily does business with.

The company has a branch based out of Beijing in the People’s Republic of China, a Communist-controlled country that is a human rights nightmare.

There’s a nicely revealing snip there from the US Commission on International Religious Freedom report on China detailing some of that country’s latest abuses.

Then Hemingway makes a point of what the RFRA is, both the federal and state versions. And applies critical thinking to this exercise in knee-jerk reaction.

The United States has since 1993 had a federal version of the bill signed by Gov. Mike Pence yesterday. And Indiana joins 18 states with versions of Religious Freedom Restoration Acts.

If SalesForce CEO Benioff is going to be consistent, he’s not only going to have to lay off everyone who works out of his Chicago, Indianapolis, Tampa and Northern Virginia offices, but he can’t even do business in Alabama, Connecticut, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Texas.

And there are more to consider. Check out the specifics in the thorough piece.

Also, Benioff may want to review his many contributions to candidates. He’s given a ton of money to candidates who voted for state or federal Religious Freedom Restoration Act legislation, including Rep. Nancy Pelosi, President Barack Obama, and Speaker of the House John Boehner.

Here’s a helpful primer the Gospel Coalition’s Joe Carter put together. At bottom,

Many media outlets identified the Indiana bill as being “anti-gay.” Unfortunately, rather than being outraged at finding they were lied to by politicians and journalists, most Americans will not bother to learn the truth and will remain ignorant about these important laws that protect our “first freedom.”

And for those who want to perpetuate the distortion that this latest extension of a longstanding, bipartisan protection of religious freedom is ‘anti-gay’, here’s what law professor Daniel Conkle wants to share, which he did in USA Today.

I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be?

It’s because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.

The bill would establish a general legal standard, the “compelling interest” test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.

Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.

In sum,

The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a “license to discriminate,” and it should not be mischaracterized or dismissed on that basis.

There’s plenty more to say, and since this story is exponentially growing bigger and hotter, ballooning with the help of media and social media campaigns fueled more by visceral reaction and emotion than information and consideration, there will be more opportunities, with all this attention, to focus on the truth of the matter.

Meanwhile, here’s the text of the Indiana law.

Finally, Supreme Court rules on contraceptive mandate

Yes, the Obamacare HHS mandate does violate fundamental rights, said justices willing to state the obvious.

The Religious Freedom Restoration Act (RFRA), signed into law under President Bill Clinton after near unanimous approval in the House and Senate in 1993, applied a two-pronged test to any attempt by government to impose a federal law that substantially burdens citizens’ free exercise of their religion. The first test requires the government to show it has a ‘compelling interest’ in enforcing such a sweeping law, and the second is that government was seeking the ‘least restrictive means’ possible to achieve its ends. There’s no way this federal fiat issued in January 2012 could possibly pass either of those tests.

The Becket Fund for Religious Liberty dubbed the HHS mandate ‘a contraception delivery scheme’, which describes it well. As the court cases piled up across the country and spectrum of employers from non-profit organizations to for-profit business owners, academic institutions to healthcare providers (see Little Sisters of the Poor v. Sebelius), government lawyers could not defend their claims coherently.

Here’s the breakdown of current cases against the federal government when those arguments have been heard in courts at all levels. Monday’s Supreme Court decision on Hobby Lobby will impact a great number of others, and certainly scored a victory for religious freedom.

The U.S. Supreme Court granted a landmark victory for religious liberty today, ruling in the case of Burwell v. Hobby Lobby that individuals do not lose their religious freedom when they open a family business. The court ruled 5-4 in favor of David and Barbara Green and their family business, Hobby Lobby, ruling that they will not be required to violate their faith by including four potentially life-terminating drugs and devices in the company’s health insurance plan or pay severe fines.

“This is a landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This ruling will protect people of all faiths. The Court’s reasoning was clear, and it should have been clear to the government. You can’t argue there are no alternative means when your agency is busy creating alternative means for other people.”

The decision also has important implications for over 50 pending lawsuits brought by non-profit religious organizations, such as the Little Sisters of the Poor, which are also challenging the mandate. In two different respects, the Supreme Court strongly signaled that the mandate may be struck down in those cases too. First, it rejected the government’s argument that there was no burden on the Green’s religious exercise because only third parties use the drugs. Second, it held that the government could simply pay for contraception coverage with its own funds, rather than requiring private employers to do so.

“The handwriting is on the wall,” said Windham. “The Court has strongly signaled that the mandate is in trouble in the non-profit cases, too.”

The Court upheld a June 2013 ruling by the Tenth Circuit Court of Appeals protecting Hobby Lobby and the Green family from the Health and Human Services (HHS) mandate. That mandate requires Hobby Lobby and co-founders David and Barbara Green to provide and facilitate, against their religious convictions, four potentially life-terminating drugs and devices in the company’s health insurance plan. The Greens argued that the mandate substantially burdened their religious beliefs in violation of a federal law, the Religious Freedom Restoration Act.

In an opinion by Justice Alito, the Court stated:

The plain terms of RFRA make it perfectly clear that Congress did not discriminate . . . against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. . . . Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

Justice Kennedy’s concurrence added: “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”

There will be plenty to cover and analyze on this in the days to come. But here’s some good background worth reading, artfully written with accurate citations by creative thinker Tod Worner, news coverage as a play in three acts. Written just over two months ago, after oral arguments were presented in the Supreme  Court by plaintiffs and government lawyers in the HHS mandate cases justices would decide later, it ended with this:

Plaintiffs and defendant would rest. The Court would adjourn. The verdict will come to us in June.

Who is this young, promising man – this main character in our play? Perhaps we can know by considering him in each act: The Speech, The Executive Order, The Court Case. Perhaps.

This play, in three acts, is far from finished. There is more to be said and done. Will it end as a comedy? Or a tragedy? How will it end? How, indeed? We shall see. We shall see.

We now see how the Supreme Court ruled on this day in this pivotal case. We’ll see what comes next. Stay tuned.

Big Government vs. Little Sisters: a breach too far

With over ninety lawsuits in courts for over two years contesting the government’s violation of the Constitution and the Religious Freedom Restoration Act, this one may be emblematic.

The Little Sisters of the Poor, and order of nuns founded in the 1800’s to care for the elderly sick and the poor, have to go to court again to fight for the right to continue to do so. As Congressman Jeff Fortenberry told me on radio Monday, “they were already providing affordable care!” And doing so long before the president’s law by that name required compliance in providing drugs and services that violate consciences.

Understand the basics here, because the Little Sisters’ case starkly reveals them.

Under RFRA [the Religious Freedom Restoration Act], the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.

From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder.

Full stop here. Because enough said. The Little Sisters – and all the other groups pursuing lawsuits to defend their right to continue doing their work and providing the healthcare coverage they were providing and applying their principles and moral beliefs to their work and services – are not trying to change what has already been easy access to birth control and morning-after pills. They’re trying to preserve their rights as they stood before the HHS mandate came out of nowhere and required coercion in a birth control delivery scheme that made these drugs part of the federal healthcare plan, masquerading as ‘women’s preventive health’.

And though this is an ‘aside’ to the main argument of government coercion to violate consciences, the HHS slipping in these drugs under that umbrella term bears scrutiny. So consider this aside:

Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.

Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.

So, getting back to the two-prong test of RFRA, the first one was just addressed, that the government does not have a compelling interest to infringe on the religious liberty of its citizens.

However…

Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.

On March 25, the U.S. Supreme Court will begin hearing oral arguments in two key cases challenging the constitutionality of the government’s HHS mandate.

In the meantime, all sorts of injunctions have been granted to employers and organizations to stave off the harsh impact of this mandate until it’s settled by the high court. That includes the New Year’s Eve injunction granted the Little Sisters by Supreme Court Justice Sonia Sotomayor. Followed by the full Supreme Court ruling continuing that relief until the 10th Circuit took up the case again.

Now the Little Sisters have gone back before the 10th Circuit Court of Appeals, seeking justice.

“We are thrilled the Supreme Court temporarily protected the Little Sisters from having to violate their conscience or pay crippling IRS fines. We are hopeful the Tenth Circuit will give them more lasting protection,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for Little Sisters of the Poor. “The federal government is a massive entity that has lots of ways to deliver contraceptives to people–it doesn’t need to force the Little Sisters to participate.”

The injunction from the Supreme Court provided the Little Sisters short-term protection from being forced to sign and deliver the controversial government forms authorizing, ordering, and incentivizing their health benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions. Instead, the Little Sisters simply had to inform HHS of their religious identity and objections.

In a USA Today column in the midst of this ongoing struggle, Kirsten Powers – who believes in government mandated birth control delivery on the face of it – called on the administration to give the Little Sisters of the Poor a break.

This is a very strange case. The government has argued that signing the form is meaningless because the nuns’ insurer, the Christian Brothers Employee Benefits Trust, is exempt from the mandate. Yet it has fought the Sisters all the way to the Supreme Court to make them sign it. What’s going on?

The government’s brief to the Colorado court provides a clue. It drips with contempt. The Obama administration finds the nuns’ complaint “implausible” and alleges that the Sisters are “fighting an invisible dragon.” Oh, you silly, simple-minded nuns! Just stop imagining things and do what the government tells you.

The Sisters reject the government’s contention that the form does nothing, as did all six lower courts to consider the claim in other church plan cases. They are wise to be leery of Uncle Sam’s intentions.

The dismissive tone of the administration’s brief is consistent with its overall attitude toward religious liberty issues throughout the implementation of the contraception mandate. Health and Human Services Secretary Kathleen Sebelius never bothered to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act, despite requests from Congress.

When asked whether she consulted the U.S. Conference of Catholic Bishops over their complaints about an effort to find an “accommodation,” Sebelius said she didn’t. Considering it was the primary group complaining, why not?

These are questions I’ve been asking for the past two years, and few in big media have bothered to. I’m glad Powers asked.

The administration’s indifference to religious liberty complaints is not limited to issues arising from Obamacare. In 2011, the government made the argument in Hosanna-Tabor v. the Equal Employment Opportunity Commission that churches do not have special rights under the First Amendment but merely association rights, like unions. Justice Antonin Scalia called this “extraordinary,” and Justice Elena Kagan said it was an “amazing” claim. Another word that comes to mind is “disturbing.” A unanimous court rejected the administration’s claim.

However, nine days after that unanimous Supreme Court ruling rejected the administration’s claim to the right to infringe on religious freedom in Hosanna-Tabor, the HHS mandate was issued. This is, in a word, relentless.